Posted
by
samzenpus
on Tuesday March 29, 2011 @10:47AM
from the there-are-no-new-ideas dept.

StormDriver writes "Have you ever thought about patenting a pop up note, an online poll, a leaderboard in an online game, or a system where you open apps by clicking icons? I have some bad news for you – it's impossible. Not because the claim is stupid, it's just that all of those things are already patented. And it's all fun and factoids, until one day you find yourself in the role of a software start-up."

Ask a lawyer if you should pay a lawyer to do something for you, and what do you think the answer will be?

Be smart, just get on with it. Axiomatically, you'll only become a target for a lawsuit when you're already successful. You can pay a lawyer then, if you like.

Or alternatively, pay an accountant. Set the company up so all the liabilities are here and all the assets are there. Ignore patent trolls, ignore any court judgements, and if and when anyone with a badge does ever come to collect, point them at the Pile-O'-Debt and tell them to knock themselves out.

This isn't theoretical - I've already been though a few employers who were set up in exactly that way. One of them simply 'phoenixed' the liable part of the business overnight: rename it, put it into administration, start a new business with the old business' name, and "re-hire" all the employees. Only the company number changed. Apparently perfectly legal stuff, at least in the UK.

Already succesful and fully profitable are 2 completely seperate things. It isn't unheard of for a software package to pick up enough of a following to draw the guns before making enough to simply pay off the authors past due mortgage payments, and even profitable dosn't mean a lawyer is going to do you much good. Lets say somehow microsoft had a patent for something blatently obvious that was used in a game that say made 100k in a year, after expenses cost of living etc, this start up has 25k left to pay a lawyer to deffend himself, from microsofts 2.5 million they decided would be worth investing into eliminating a threat before it was big enough to fight back.

This won't work in America due to piercing of the corporate vail. Moving your assets to a holder won't protect them, and moving debt to subsidiaries won't work either, as you're committing fraud. This is the EXACT same thing Author Anderson helped Enron with. Enron moved their debt and losses to special purpose entities (SPE) to boost the parent companies earnings and balance sheets. As a result of such shenanigans, corporations got stuck with complying with the million dollar a year law called Sarbanes-Oxl

Also, depending on how your corporation is set up, it's possible that the only way to pierce the corporate veil is for payroll taxes. Anyone who signed paychecks could be held personally liable for those taxes, but anything else stops at the corporation. So if it's your company, your salary should equal whatever it takes to zero out your profit and loss after paying all your bills and then they can't come after that.

Hollywood would beg to differ with your assessment regarding the viability of this practice. There are in fact many ways to structure corporations to accomplish this goal. The fact that it is fraudulent doesn't seem to get in the way, as a matter of fact the movie studios now have the cooperation of DHS (ICE) based on this type of accounting to prove that they are losing billions to copyright infringers.

Be smart, just get on with it. Axiomatically, you'll only become a target for a lawsuit when you're already successful. You can pay a lawyer then, if you like.

Or alternatively, pay an accountant. Set the company up so all the liabilities are here and all the assets are there. Ignore patent trolls, ignore any court judgements, and if and when anyone with a badge does ever come to collect, point them at the Pile-O'-Debt and tell them to knock themselves out.

These are needless kludges. Stuff like this shouldn't be necessary. All these measures are patches for working around a broken system. Is some kid right out of college expected to put development of his Awesome New Idea on hold until he can contract a patent attorney, an accountant and a legal aide so he can implement the most trivial and obvious of software patterns? Kiss the Mark Zuckerbergs and Sergey Brins of the world goodbye, they'll go off and innovate in areas *not* encumbered by such useless no

Stuff like this shouldn't be necessary. All these measures are patches for working around a broken system.

That system is called western civilization. It shouldn't be necessary to do any work at all but have all of life's pleasures delivered for simply living but that's not reality either. Deal with it.

Is some kid right out of college expected to put development of his Awesome New Idea on hold until he can contract a patent attorney, an accountant and a legal aide so he can implement the most trivial and obvious of software patterns?

That advice has little to do with software patents honestly and is just good advice when setting up a business of any sort. Talk to an attorney and/or talk to an accountant. Do that a few times till you find one who isn't a lying worthless shit. Then do your own research. Then talk to them again.

That system is called western civilization. It shouldn't be necessary to do any work at all but have all of life's pleasures delivered for simply living but that's not reality either. Deal with it.

So you advocate just letting things stay broken because they're broken? Lets break more stuff and we can be super civilized! A broken patent system is in no way intrinsic to civilization. It is entirely possible to have sane patent laws, a functional patent office, and a court system that works. We just don't happen to.

If the "Awesome New Idea" has already been patented by someone else, it's not technically a new idea anymore - it's a clone.

That patent is also a clone of someone's idea, except the patent holder had enough money to file his claim on paper. And since most patent lawsuits take place in a specific small Texas town whose sole industry is patent lawsuits there's a certain conflict of interest, in favor of the patent holder, in any such lawsuit.

Or just live in Europe (no, UK isn't really there) and forget about software patents : they are illegal there and despite the EUPO giving them anyway for a fee, they have never been tested in court.
Most of them are defensive patents for companies that wish to sell software in US or Japan.

Or alternatively, pay an accountant. Set the company up so all the liabilities are here and all the assets are there. Ignore patent trolls, ignore any court judgements, and if and when anyone with a badge does ever come to collect, point them at the Pile-O'-Debt and tell them to knock themselves out.

This isn't theoretical - I've already been though a few employers who were set up in exactly that way. One of them simply 'phoenixed' the liable part of the business overnight: rename it, put it into administration, start a new business with the old business' name, and "re-hire" all the employees. Only the company number changed. Apparently perfectly legal stuff, at least in the UK.

How do you get credit as a company with all liabilities and no assets?

Right, so then when the liability container corporation goes out of business, the it defaults on its debt to the asset holding company and the asset holding company is on the hook to the creditor. How does that help, exactly?

That's not so easy in the USA. US law has the notion of "shell corporation" and you can pierce the corporate veil to go after judgements. In fact setting up things this way allows the court to go after the owner's personal assets.

Slashdot is an American site. Sure there are a large number of foreign visitors, but the site itself and the bulk of the readers are American. It only makes sense to assume we're talking about America unless a qualifier is given. If I went to the BBC's site and started posting in a discussion where location mattered I would immediately preface my statements with the fact that I'm talking about America, because though there are visitors from all over, the BBC is a British site with primarily British reade

Slashdot seems to be very U.S.-centric. Do you have any plans to be more international in your scope?Slashdot is U.S.-centric. We readily admit this, and really don't see it as a problem. Slashdot is run by Americans, after all, and the vast majority of our readership is in the U.S. We're certainly not opposed to doing more international stories, but we don't have any formal plans for making that happen. All we can really tell you is that if you're out

Traffic statistics would only be available to the site owners, who don't publish them. HOWEVER, they do specifically address the issue in their FAQ (www.slashdot.org/faq) - emphasis mine:

Slashdot is U.S.-centric. We readily admit this, and really don't see it as a problem. Slashdot is run by Americans, after all, and the vast majority of our readership is in the U.S. We're certainly not opposed to doing more international stories, but we don't have any formal plans for making that happen. All we can really tell you is that if you're outside the U.S. and you have news, submit it, and if it looks interesting, we'll post it.

Thanks. Not wanting to be an ungrateful ass or anything, but it would have helped if you had stated the following information pertained to the UK first..

It's very typically the other way around. TFA for example assumes you are in the USA without ever even mentioning it and therefore ignores things such as the European Patent Convention which "excludes 'programs for computers' from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program"

I tend to make the assumption that if it's about some silly law(-suit), patent or other silly legalese problem, then the poster resides in the US of A. else { Europe }. Occasionally I get a false positive, but then nothing of value was lost at that.

It's cold in Canada. Hell it's cold in the upper part of the US that borders you, but past that it starts getting mightly cold to put up with, which is likely why 80% of the Canadian population lives with 150km/93miles of the US border.

www.slashdot.org are located on the WORLD WIDE web and thus you can make certain assumptions about its articles.

Being on the "WORLD WIDE web" just means that it has a web page. There's a reason we emphasize "web" instead of of "world wide."

Even looking at the domain name (side note: domain names predate the world-wide web), you can make some assumptions. For example. the words "slash" and "dot" are in English, so you can safely assume "slashdot.org" is written in the English language.

http://slashdot.org/faq [slashdot.org] "Slashdot seems to be very U.S.-centric. Do you have any plans to be more international in your scope?

Slashdot is U.S.-centric. We readily admit this, and really don't see it as a problem. Slashdot is run by Americans, after all, and the vast majority of our readership is in the U.S. We're certainly not opposed to doing more international stories, but we don't have any formal plans for making that happen. All we can really tell you is that if you're outside the U.S. and you have news,

Yep, I'm gonna "me too" your other repliers - I'm an American, and I know that I don't state that up front, ever (except, ironically, in this post). I think we'll live if other nations' citizens make a "my country-centric" statement from time to time too.

This also works in the US. I have done this to guard against the threat of lawsuits with small companies (but never had to use it). Large companies do this all of the time. It's called "strategic bankruptcy". Its a convenient way to privatize profits and socialize the losses. Our banker friends did this with all of the toxic loans they created.

If you go and actually try to research software patents your head will explode so best to follow Linus's advice:

I do not look up any patents on _principle_, because (a) it's a horrible
waste of time and (b) I don't want to know.
The fact is, technical people are better off not looking at patents. If you don't know what they cover and where they are, you won't be knowingly
infringing on them. If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git.

I date back to Z80 Assembly as the preferred programming method. I had developed some very interesting and unique things. I never thought of patenting them, and I shared them on bulletin boards and in print with joy.

Now, with my many years of experience, because big business has laid lawyer minefields with software patents, I don't even think of publishing my own programs. When I do work, it's as a contract consultant to a giant company (who also has me tied up in 2" of contracts that I can never work for anyone else)

I'm thinking my next venture will be a hot dog stand. A good hat dog is as illusive as it is tasty.

Software patents serve no one but giant companies, and only to stifle innovation. Exactly the opposite of their stated purpose.

"Software patents serve no one but giant companies, and only to stifle innovation. Exactly the opposite of their stated purpose."

However, that was always their purpose. It's always been the largest firms (particularly IBM pre-2000 and Microsoft post-2000) that expanded patent law into software, and that bought the most patents. Small firms have never mixed innovation with patenting, it's contradictory. You can either hold patents and sue others, or you can make products and avoid patents. Trying both means you are sued systematically unless you are in a field with practically no patents, e.g. a technical patent on a fashion item like a shoe.

Patents are inherently anti-competitive, this is well known in the patent industry, where people who actually make products and innovate are considered as a kind of food source for higher level patenting predators.

In software, the food source seems endless, which is why no-one's worried. But in other industries, it's already tipped so far that basic research is throttled in the US, EU, and Japan, and other countries are easily taking a lead.

All patents are bad, they all allow one entity to control the use of an idea in the market, they all act to restrict competition and they are all inherently anti-free market. There are no good patents.

The irony of you writing your lies about how research works using an Internet, perhaps the largest ever research project undertaken by mankind, and born out of a scientific community unhampered by patents... is massive.

Now, with my many years of experience, because big business has laid lawyer minefields with software patents, I don't even think of publishing my own programs.

Isn't that the opposite of what you should do? I would think you should publish everything to make sure there is a public record of the prior art, to make it harder for these asshats to get and keep bad patents.

It's the business equivalent of the RIAA's copyright lawsuits. Find 1,000 small businesses. Send them letters claiming that they are violating a patent that you hold the rights to. Demand $X payment or you will sue. Many businesses will get scared and pay up. The ones that don't you can either sue (in a different district than they are in so as to make it prohibitively expensive for them to defend themselves) or you can ignore. Use the money towards Threat Round 2 (and towards a new car for yourself).

I agree the patent system is broken, and in the computer world it needs to have significantly shorter terms. But it's worth noting that many concepts (and the methods for implementing them), which seem "obvious" today due to their ubiquity, may not have been so 10 or 20 years ago.

Hell, many cultures never discovered the wheel, or would have developed much later if they hadn't been introduced to it by their neighbors.

Do you actually have an example where the differenciating aspect with regard to prior art is "on the internet"?

I doubt that you will even find many examples that mention the internet in the independent claim, as that would be far too limiting. Only very inexperienced (and dumb for not getting help) applicants would possibly write a patent like that.

Patents are supposed to cover implementations, not ideas. If I patented, say, a glue that worked in space, or at the bottom of the ocean, it wouldn't be "obvious" just because it's glue.

While the patent system is abused and some of the things "patented" are vague ideas that would apply to almost any implementation, there's no reason why a patent can't cover something which already exists in another environment.

Fortunately, patent terms haven't ballooned the way copyright terms have. Patents now cover up to 20 years from the first filing date (which can be many years before the patent is ultimately issued). In most industries that's pretty reasonable, but in software 10-20 years can be an eternity.

It seems like the best approach would be to change the patent term to whatever the length of a "generation" is for a particular industry, consulting experts in a given field to determine what that epoch may be. In automobiles, it might be twenty years. In software development, it might be two.

Not a european developer's nemesis. Because, software patents are not recognized there, due to higher level of common sense and less greedy control over society.

this picture painted in your summary and the articles, is the picture of what american capitalism did to software. a feodal minefield in which you either work for a bully stronger than you, or dont work at all.

Nor exactly. With politicians in Europe being just as corrupt and/or gullible as in the US the possible introduction of software patents is always a constant threat as well. It's just a matter of when enough of the right hands have been greased.

You scoff at that like it's a negligible number. Last I checked, a quarter of the entire planet's GDP is a helluva lot. You also neglect to realize that a big ass chunk of the 3/4 of the rest of the world is China, who barely recognizes copyright law and thus piracy is ramptant. So yea...good luck staying in business when you turn your back to one of the largest legitimate markets in the world and most users of your software are just simply pirating it.

Talk about two devils:One market will blatantly steal your product and disperse it within their borders at a discount or free.The other will sue you because someone thought of doing it, had no intention of actually doing it, but managed to get a patent to make sure they'd profit when someone did.

Sadly, one of those is lost revenue in that you make fewer sales. The other is lost revenue in what you have to pay in a settlement. At least in China you don't have to worry about losing assets that you had befor

You make it sound like there's just China and the US to choose from, while in fact there's still 2/3 of the world's GDP left when you deduct those two countries. The GDP of the EU and Japan is about the same as that of the US + China. And then there's Russia, Canada, Brazil, India, Australia, Mexico, South Korea, each with a GDP of about a trillion USD or more. The world is a big place, you know.

You're trying to make it sound like sarcasm but you're spot on. If the ROI's too low because of legal barriers to entry, then why bother? Especially when there's a richer market a 7-hour flight away. Localisation and translation (because all those pesky Euros will insist on not speaking English) are small burdens to take on if it means that your innovative new application doesn't have a 99% chance of being a millstone round your neck instead of your ticket to Ferraris and EUR2000/night hookers. Offshoring d

If the ROI's too low because of legal barriers to entry, then why bother?

And what barriers of entry would that be exactly? Software patents don't prevent somebody from penetrating a market. They only become a problem once somebody threatens legal action against you, which is usually the result of already being a market player and becoming successful (you can't get blood from a turnip, right?). It seems to me that for a company not based in the US, the worst that could happen (that the US could actually enforce) would be to grant an injunction against your infringing product(s

Not a european developer's nemesis. Because, software patents are not recognized there, due to higher level of common sense and less greedy control over society. "

Wasn't gif under a patent in europe until 2004?

"The US LZW patent expired on June 20, 2003.[21] The counterpart patents in the United Kingdom, France, Germany and Italy expired on June 18, 2004, the Japanese counterpart patents expired on June 20, 2004 and the counterpart Canadian patent expired on July 7, 2004."http://en.wikipedia.org/wiki/Graphi [wikipedia.org]

I do find it interesting that in the US where software patenting is in full force, we seem to have the most thriving software market anywhere.

I would argue that that was due to being inside the biggest single market in the world during their respective growth periods, especially with regard to the technology market. i.e. right time right place.

Regardless of the state of patents, those companies could not have moved into being such large multinationals as easily if their home markets were smaller because

Good question. Where would we be if someone had sued Gates and Allen's asses off for porting BASIC to the Altair without permission? Or if Xerox had sued Wozniak and Jobs for copying their GUI concepts?

Could you explain to me why virtually all of the largest and most innovative software firms are based in the US?

Good universities, concentration of peers in Silicon Valley, etc. It was that way before there were software patents in the US. IBM, Microsoft, Oracle, Apple, Intuit, Id and CA Technologies were all already major players by the 1980s. The remaining companies' success can hardly be attributed to software patents -- I mean RedHat, seriously? The RedHat that files court briefs against software patents pretty much any time the issue comes up?

Moreover, the existence of software patents in the US has absolutely n

so, most innovative software firms are based in the u.s. ? microsoft, oracle, ibm et al ?

are you aware of the innovations that are done in europe ? no. because they are not touted to greedy shareholders to play the share game. yet, most of the contributions to linux code that a lot of the names you name there use, come from especially scandinavian countries ?

its not that u.s. companies are more innovative - its that much more drum is being drummed over these stuff in that country, than any place else.

I recently ran across a startup called Monvee [monvee.com], they developed an application to "help people discover what is getting in the way of their spiritual growth and then craft a plan to address it". Whatever, not my cup of tea, until I saw the "Patent Pending" at the bottom of the website. Really, you're patenting a way to grow spiritually? A search of the USTPO database found their application, Method and system for virtual mentoring [uspto.gov]. From TFPA:

The present disclosure is directed generally to a method of and system for virtual mentoring including in one embodiment, an internet based software and computer implemented system to assess, analyze, and provide individualized recommendations to a user to identify a specific attribute or skill to improve and recommend particularized actions and resources that are designed to help the user improve the identified skill.

This is just an example of a patent to 'do X using the Internet'. Where X is not an innovation and probably prior art.

Its like the invention of the pickup truck. Or more like the idea of a pickup truck being placed into the public domain (much like the Internet was, patent free). The first farmer who said, "Gee. I can haul my corn to the market in this instead of a horse drawn wagon" would be on shakey ground trying to patent it. Particularly if the pickup truck's creator had envisioned a vehicle for hauli

Yes, yes... Patents are supposed to be "non-obvious", but that has no meaning at all. To prove that a patent is "non-obvious" to an individual skilled in the art patent examiners simply look at what's already patented. Why, if it's worthy of submitting a patent application, whomever came up with such an idea would have patented it already? Right? Wrong. Just because an idea "exists" doesn't mean the creator of the idea decided to patent it -- In fact, most ideas are not submitted for patent approval.

I hope I'm wrong but I find it entirely credible that in the not so near but also not too distant future writing programs -- be it for yourself, for OSS, or for small commerce -- will become an unlawful underground activity. All software and information will be controlled by a small group of huge stock enterprises, the sole survivors of the first international patent and copyright war. Unless they work for one of those giants, programmers will have to meet conspiratively in old cellars, private apartments, and unknown bars but often these meetings, which are only announced by mouth to mouth propaganda, will be interrupted and dispersed by violent police raids, often resulting in people getting killed, arrested, or being sued for statutory damages of 75 trillion dollar.

Hopefully, if this is going to happen it will be a bit like Half Life 2 (except, perhaps, for the aliens).

I hope I'm wrong but I find it entirely credible that in the not so near but also not too distant future writing programs -- be it for yourself, for OSS, or for small commerce -- will become an unlawful underground activity. All software and information will be controlled by a small group of huge stock enterprises, the sole survivors of the first international patent and copyright war. Unless they work for one of those giants, programmers will have to meet conspiratively in old cellars, private apartments,

This is so sad. I thought patents were about more than simply the first time someone writes a subroutine.
What is next?
"Microsoft patents use of computer languages for writing programs" ?
Wake me up, I am having a nightmare.

Since we all seem to agree that you cant patent wood, or fire, or dirt

At least in the United States, one can patent a novel composition of matter, such as a new type of wood or dirty.

And like all patents, it has an expiry date.

So do copyrights, in theory. But like copyrights, patents on methods of information processing last long enough to be counterproductive at "promot[ing] the progress of science and useful arts", as the US Constitution puts it.

I have a simpler idea. You can't patent software. You can only patent a physical object. The problem with software patents is that if it looks the same (or even similar) it is very hard to prove that it is functionally different. For example, if I patent a machine that uses a saw to cut widgets out of a sheet of metal, that patent does not apply to your machine that cuts widgets out of a sheet of metal using a laser (ok, if all you did was put a cutting laser where I had a saw it might, but in all probabili